The Punjab and Haryana high court (HC), while giving custody of a child to the mother, has asserted that small children have a special bond with the mother that not even father can substitute.
“There can be nothing more cruel than to deprive an infant of a mother’s care, love and affection. This is a well-recognised feature of basic human nature, borne out of experience and is also statutorily recognised,” the bench of justice Shalini Singh Nagpal observed while rejecting a request from the father to grant custody of a two-year-old child.
In the case at hand, the mother had approached the HC seeking the release of the girl child from her father and his family members. Both husband and wife had a second marriage. The woman filed a plea in HC seeking custody with the allegations that his family had a criminal background and is habitual of taking intoxicants and threatening her, and that her child was not safe with them. “The child is living happily with the father and is getting proper love, care, affection and emotional support. She is regularly attending school. Her education, physical and emotional needs are being taken care of. Apart from her father, her grandparents and other family members are always available to look after the child,” the husband had claimed.
The woman had no child from her first marriage while the husband had a 15-year-old girl, born out of first marriage. They got married in 2022 and got embroiled in the marital discord, months after the marriage. The court noted that from the bare provisions of Hindu Minority and Guardianship Act, 1956, it comes out that custody of a minor who is less than five years of age, shall ordinarily be with the mother.
The husband denied the allegations and told the court that the woman had voluntarily left the matrimonial home and that she had been suffering from psychiatric ailments and was taking treatment for the same. Further, the law declares in unequivocal terms that the “welfare” of the minor would be the paramount consideration when it comes to a court appointing a guardian for the minor.
The moral, religious welfare of the child, her physical well-being and financial welfare are all relevant considerations. The child who is two, certainly, needs her mother more than father. The mother in this case is financially better off, more educated and well-placed. “A girl child, who is two-years-old can effectively be taken care of by her mother. The court, however, held that the father would be entitled to visitation rights on every Sunday.
“The term “welfare” has to be interpreted in its widest sense. All these factors, considering the tender age of the child, work in her favour,” the court said. Such a small child has a special bond with the mother, who no one else, not even the father can substitute,” it said awarding custody to the mother and holding that there are no exceptional circumstances that warranted depriving the mother of the custody of the child.
